364 F.Supp. 251 (D.Neb. 1973), CV72-L-183, Nebraska Dept. of Roads Emp. Ass'n v. Department of Roads, State of Nebraska

Docket Nº:CV72-L-183.
Citation:364 F.Supp. 251
Party Name:NEBRASKA DEPARTMENT OF ROADS EMPLOYEES ASSOCIATION, an unincorporated association, and Richard Kiernan, Plaintiffs, v. DEPARTMENT OF ROADS, STATE OF NEBRASKA, and Thomas D. Doyle, State Engineer and Director of the Department of Roads, Defendants.
Case Date:August 08, 1973
Court:United States District Courts, 8th Circuit, District of Nebraska
 
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Page 251

364 F.Supp. 251 (D.Neb. 1973)

NEBRASKA DEPARTMENT OF ROADS EMPLOYEES ASSOCIATION, an unincorporated association, and Richard Kiernan, Plaintiffs,

v.

DEPARTMENT OF ROADS, STATE OF NEBRASKA, and Thomas D. Doyle, State Engineer and Director of the Department of Roads, Defendants.

No. CV72-L-183.

United States District Court, D. Nebraska.

Aug. 8, 1973

Page 252

Douglas Marti, Lincoln, Neb., for plaintiffs.

James J. Duggan, Asst. Atty. Gen., for defendants.

MEMORANDUM OF DECISION

URBOM, Chief Judge.

Richard Kiernan seeks relief from the effects of his discharge from public employment in the Department of Roads of the State of Nebraska. The claim is that his discharge was for one or more reasons which the United States Constitution forbids the state to use. As explained in this memorandum, this court concludes that he is right in this claim and that he therefore is entitled to relief.

The action is founded upon the Civil Rights Act, 42 U.S.C. § 1983, and jurisdiction rests upon 28 U.S.C. § 1343.

I.

FREEDOM OF ASSOCIATION

Following his discharge, Kiernan filed suit in the Court of Industrial Relations of the State of Nebraska and that court, after a full evidentiary hearing, concluded that it had no jurisdiction because the dismissal was not "because of ... [Kiernan's] membership in or affiliation with the ... [Nebraska Department of Roads Employees Association]" and therefore that there was no industrial dispute. The court said that "the plaintiffs here have not convinced us as triers of the fact that the firing of Kiernan or the other activities of the defendant as shown by the evidence were motivated by anti-union sentiment." On appeal to the Supreme Court of Nebraska the dismissal of the Court of Industrial Relations of Nebraska was upheld, again on jurisdictional grounds, because of the lower court's finding that there was no antiunion animus shown to have prompted the firing.

Because the court of industrial relations had jurisdiction only to decide its own jurisdiction, I must give full faith and credit to its decision, as affirmed by the Supreme Court of Nebraska. As a finding of fact that the

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termination of Kiernan's employment was not the result of antiunion behavior was necessary to a determination of lack of jurisdiction in the court of industrial relations, that fact is finally determined. However, to avoid any undue concern or needless effort, I find from a review of the evidence as a matter of fact that the discharge was not for any reasons related to Kiernan's union membership or activity.

It follows that the plaintiff Nebraska Department of Roads Employees Association is not entitled to relief. It also follows that the claim of the plaintiff Kiernan that his discharge was in violation of his constitutionally protected right of association must fail.

II.

FREEDOM OF SPEECH

A. Findings of Fact.

The defendant Thomas D. Doyle, State Engineer and Director of the Department of Roads, was appointed to that position by the Honorable J. J. Exon, Governor of the State of Nebraska, at some date not specifically disclosed by the record, but impliedly a few months before August, 1971. On August 28, 1971, at a closed meeting of the Professional Engineers in Government Section of the Professional Engineers of Nebraska, at which no representatives of the press were invited or attended, a discussion was had of the proper role of the Professional Engineers in Government Section in future political appointments. Another Department of Roads employee asked what the Section intended to do about the State Engineer's situation. The chairman of the meeting, W. R. Meyer, Jr., said that he did not know whether the board of directors of the Section had taken any stand on it at the time of the appointment but that he felt the matter could better have been considered at the time of the appointment than at this late date. Kiernan then said that he agreed that it was now too late and further said in effect that Doyle was not particularly qualified for the position of State Engineer, not being a civil engineer, and that it was inappropriate for the Governor to have appointed him to that position. Kiernan made no further comment regarding Doyle.

Doyle learned that comments of some kind regarding his qualifications had been made at the meeting but did not know that Kiernan had made them. On September 1, 1971, Doyle called W. R. Meyer, Jr. to his office and asked whether Kiernan had questioned Doyle's qualifications. An affirmative reply was received. Doyle thereafter on the same day called Donald Swing, Kiernan's immediate superior, and asked him to come with Kiernan and Deputy State Engineer Roy Gardner to his office. As stated by the Supreme Court of Nebraska:

"... At the meeting, Doyle asked Kiernan if he had made the remarks in question and asked him if he would care to repeat or elaborate on such remarks. In answer to this question, Kiernan said, 'I'll be honest, it is my contention that you're not qualified to fill the position of Director-State Engineer, and it is my further contention that it was inappropriate for Governor Exon to have appointed you to that position.' Kiernan made it clear that the opinion was based upon the fact that Doyle was not a civil engineer, and did not have the necessary education or experience to fill the job. No voices were raised during the discussion and there was nothing threatening or otherwise objectionable about Kiernan's demeanor."

Doyle immediately informed Kiernan orally that Kiernan was suspended from his job without pay and confirmed the suspension by letter. By letter dated September 7, Doyle wrote Kiernan that, effective immediately, he was dismissed from employment. Reasons cited were "direct insubordination," "conduct unbecoming a State employee," and "for the good of the classified service," but testimony

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makes it clear that the basis of the discharge was the substance of the words said by Kiernan in Doyle's office, as recounted above.

...

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